Texas court says state institutions can use copyrighted material for free

A Texas appeals court has ruled that the University of Houston does not have to pay the photographer of a picture it has been using in online and print promotional materials. Houston photographer Jim Olive says the university removed copyright markings from an image downloaded from his stock library, failed to credit him when it was used and wouldn’t pay when he sent a bill, but the university claims it has sovereign immunity and that it can’t be sued.

The case surrounds an aerial image Olive shot from a helicopter hired specifically for making pictures for his library. In an online image search, he found the university was using it on its website and then in printed materials. When it failed to pay an invoice he sent for the usage Olive tried to sue the university, but it claimed that under the Eleventh Amendment it couldn’t be sued as it is a state institution.

In an attempt to get around this Olive tried to sue the University of Houston for taking his property – in which case even government agencies would have to compensate the owner. The Court of Appeals though has said that the university’s actions didn’t comprise ‘taking’ and that Olive will have to pay the university’s legal costs.

The Court of Appeals though has said that the university’s actions didn’t comprise ‘taking’ and that Olive will have to pay the university’s legal costs.

According to a report in the Houston Chronicle, which described the success of the university as ‘a big win’, Olive said 'It just doesn’t seem fair to me.'

If this ruling is allowed to stand it would seem that any state institution can use images and other intellectual property without having to pay the originators, a precedent that would be damaging to photographers across the country, because if that's the case in Texas, it may well be true in all other states covered by the Eleventh Amendment.

But wasn't the reason it was filed under the 'takings' theory to a state court that Federal Court has upheld the sovereign immunity doctrine for copyright infringement claims against the state ? Why should it be different for a software license ?

Software is different. Software makers have enormous wealth and power. Photographers do not. The University of Houston knows who they can steal from and who they cannot steal from. If this was a case of Microsoft/Adobe/etc. vs. U. of Houston, the result would be different.

If the people of Texas don't like the way sovereign immunity is applied in their state regarding copyrights, they can change their laws to allow people to sue the State. Many States are sued for all sorts of things, for example liability when someone is injured on a construction site of a state building.

Well, it's not hard to imagine an attorney arguing to a court that a photographer who claims ownership of an image has effectively placed it in the public domain by the simple act of posting it on the Internet.

It's not even the notion of sovereign immunity and its application to state governments that is insane here, rather it is the fact that the university is treated like an agency of said government rather than a separate economic and legal entity funded and controlled by the govrenment.

Well it’s funded to a large extent by the ever increasing student tuition, and the long list of inexplicable fees tacked on to that. I’d love to see a full and transparent accounting of where all the money goes and into who’s pockets. State universities are not exactly models efficiency when it comes to converting money into education for the attending students. I recall the president of UNT in Dallas having a $50,000 annual budget just for landscaping at the presidents residence.... You can look one that up. Your tax dollars, and student tuition, in action.

That's not surprising, states themselves are rarely models of efficiency when it comes to converting money into value for the general populations, but afaik this is still not an area where they are facing competition from private universities.

This is a clear case of theft and copyright infringement. This court’s ruling is absurdly ridiculous. And the photographer has to pay the university’s legal fees? Just unbelievable! They absolutely ‘took’ no doubt.

The real question here is, "Should sovereign immunity exist?" Or at the very least, should stealing intellectual property be exempted using the sovereign immunity precedent. Seems to me, that this allows government to trample the rights of private citizens with impunity.

I have read your online introductory puffery, that "UH prepares the skilled workforce, accomplished leaders and innovative problem-solvers that are now essential for an enlightened and engaged community."

Having also read about how UH has appropriated without compensation the work of Houston photographer Jim Olive, and further, secured a judgment against him for your legal costs when he sought a well-deserved redress, I am obliged to wonder: Is theft now included as a component of UH's definition of "innovative problem solving"? Will you formally make it part of your school's curriculum? Will you on homecoming weekend celebrate it as part of UH's traditions? Perhaps all of the above?

Your so-called "university" couldn't have generated worse publicity if you tried. To the fullest extent possible, I will make it a point to never employ or do any business with any of your graduates, and to recommend against your institution to any prospective students.

I wouldn't be able to say it better than you (English is not my native language), but please remember, and history proves it, a week from now nobody will be talking about this.. and they know that.I would like to be wrong about this premise.. Believe me.

@HowaboutRAW This will never spread to software. In a world of might makes right, the software makers have a lot of might, way more than a solo photographer. The judges are state employees and sided with the powerful state against a relative pipsqueak. They are perfectly OK with stealing, depending on who is doing the stealing and who is getting work stolen.

This issue is much larger than "Texas", and apparently it's been with us for a long time. The issue is the doctrine of "sovereign immunity", and how the US Supreme Court has applied that doctrine.

I wasn't familiar with this, but some quick googling turned up this testimony by Marybeth Peters, the "Register of Copyrights" at the time. It explains the situation in the year 2000. Apparently, it's the same today.

The Houston Chronicle article says UH offered to pay $2,500 after the photographer billed the school for $41,000. The real dispute is about the AMOUNT of compensation. When Mr. Olive threatened to sue, UH correctly pointed out that it cannot be sued and cited "sovereign immunity" a well established legal principle. His court case was a strategy to circumvent this principle which his lawyer should have known would not work. He should be suing his lawyer for taking him down this rabbit hole.

I wonder how he came up with the $41,000 figure. From the article, it sounds like a single use of a single image - unless the university offered it as part of a press pack or something like that? $41,000 is probably in the ballpark to create this is as a bespoke work, in which case the copyright would automatically transfer to the client. In either case, using first and paying later should incur a significant mark-up on whatever would have been a reasonable price if correctly paid prior to use.

"Olive discovered the university's business school had been using one of his aerial skyline photos for four years. He sent the university a bill for $41,000, which included $16,000 for the frequent use of the photo and $25,000 for stripping off his credit line when the university allegedly provided a copy to a national magazine for a story about the university's ranking."

@Deardorff: Unlikely to succeed, as the magazine probably acted in ignorance. It was the "university" that removed the watermark (yeah, go teach that to your students, ey?), so how would the magazine know?

Edit: Quote marks added due to apparent misclassification as an institute of education. (From Latin educare, "to bring up or train or nourish".)

Capitalists have no interest in paying people for their work--they only do so because of a bit of contract law. And here the U of Houston has said unfortunately said "contracts don't apply to us", which is an authoritarian position, there can be "left" authoritarians but also rightist ones.

Now actual socialism would make the underlying technology of Google's search public domain, since the basis for all of that is publicly funded research at places like Stanford University. Instead we get Stanford owning the patents (likely now expired) that are the basis of Google's search algorithms.

In fact publicly funded research could NOT produce patents until Jimmy Carter and Bob Dole changed the law in 1980.

Correct, the U of Houston has opened up a can of worms with this since now it can argue it doesn't have to pay for intellectual property it uses within its programs.

This is not capitalism, but communism in its purest form. It is called nationalization (of property). This happened in my country in the fifties - communists took property from people and sent them to working camps. I noticed that in Texas there is a lot of Russians, maybe they overtook this state and it is now one of soviets. This is not normal, it is insanity.

The doctrine of sovereign immunity is an ancient legal principle, dating back to feudal Europe, when power flowed from the King down through the nobility and very little trickled down to the peasantry. It is rooted in the premise that to submit to the jurisdiction of a court implies that one is subservient or inferior to the power of that court. ... in feudal times courts were not judicial bodies as we have come to understand them ... today, but rather the courts of a King or feudal Lord ... Thus, even a court of the King could not exercise any authority over the King unless the King should consent.

Any form of government associated with any ism whatsoever reserved itself the right to take away property without compensation or with compensation determined by itself, the only difference is in the extent to which the judiciary can interfere with that right and its level of independence from said government executive and legislative branches.

I have another term: Globalism.The elites in power using the government to establish their needs.So the state is a servant to the master, the globalists, and does whatever is needed. In this case to dispossess the people. What is the end goal of this tactics? Maybe it has to do with the slowly process of dispossession in every aspect. But this a theory :P

Almost certainly, some undergrad or assistant saw the image online, thought it would be cool to use and cloned out the watermark. The materials made it through the food chain without any kind of review and it got published.

Almost all large organizations have policies against doing this, but they don't actively police them - it's on the employees to understand the rule and not break it. Happens all the time where I work. People grab images they like from the Web and put them in powerpoints and marketing proposals.

exactly. in a world without a government there won't be corporatism nor monopolists ... there are theories out there where easy to understand that in a free market there is no violence, no fraud ... everybody who plays unfair will be kicked out of the free market. One can do a research who sponsored the communists or Germany.... He/she would be surprised... Why it is cool to wear a Che Guevara T-Shirt??? Why Mandela is put as an icon??? If you don't see it you are heavily blue-pilled (Matrix)

che is held out as a symbol to those who would oppose forces like right wing death squads trained in the usa and unleashed on central america as terrorists to crush and muder supporters of democratically elected left leaning natons whose land reform and efforts to bring health care and end starvation for poor etc enraged the military capitalists and anti reformers

its at the center of the skullduggery in south america today with columbia and brasil falling to the right in the last decade or 2 ... american fruitcakes like Bolton trying to whip up opposition to the democratically elected Venezuelan govt is part of this endless saga

america has a long history of crushing democracy around the world and replacing it with military power

arpanet was the genesis but the internet as we know it grew out of universities and indepedent computer geeks developing com protocols and the desire to share info and have computers and their users communicates over vast differences to serve peace not war,

it was allowed to happens and the surviellance earth is the result ... i doubt it was an accident

And according to Uncle Sam is meddling in other sovereign is an evil thing I agree 100% !!!!!!

But it has NOTHING to do with your fantasy RIGHT-wing theories.

When you hear RIGHTWING, than this is a fakenews-mainstream-media-propaganda!

And making a violent communist regime as a symbol is again a trick from our cruel left wing ruling systems (media-govt-education indoctrination system) praising the communism and telling us that it's the evil on the other side; What a inconsistency...

Not by the early 1980s it wasn't, then it was a big government project which involved big research universities--Harvard, Berkeley, the University of Minnesota (origin of the first message boards) etc.

Also the military is part of the government, and government research paid for the development of the early internet.

"And making a violent communist regime as a symbol is again a trick from our cruel left wing ruling systems (media-govt-education indoctrination system) praising the communism and telling us that it's the evil on the other side; "

during the cold war arpanet was a system whereby even if 90% of infrastructure [ phone lines etc] was destroyed ,enough redundacy existed for any 2 points in the usa to communicate info and logistic with landlines due to the weblike covering of the usa with telephone landlines ... some path, even in a hypothetically severely damaged america, would still exist in a national emergency.. hence the early comm protocols of arpanet

i know my historythe only fantasy i see is your childlike understanding of recent history

its all documented history for those with the courage to look and not label everything they fear or see as an attack on their simple minded patriotism as "conspiracy"

gain a little perspective & intellectual honesty.. its never too late and always a personal choice

@UllerellUThen I suggest you read this testimony from the US copyright office to Congress. You'll gain a new perspective (and improve your sense of smell!), since it explains where the doctrine of "sovereign immunity" **actually originated** (I'll bet you can guess it was *not* in the United States!)

"The doctrine of sovereign immunity is an ancient legal principle, dating back to feudal Europe, when power flowed from the King down through the nobility and very little trickled down to the peasantry. It is rooted in the premise that to submit to the jurisdiction of a court implies that one is subservient or inferior to the power of that court. "

@richdm Does posting the same link over and over and over and over in these comments make you happy? It's a damned long article and it highlights how the Supreme Court went against precedent and the against the clear will of Congress. But you're welcome to keep linking to it a few dozen times.

@UllerellU Your simple eyes would be advised to read the article @richdm links and do a little research to understand how constitutional law was applied in this case. This has nothing to do with Texas, except that it happened there.

Gentlemen, hold your horses. Have you actually read the case?The poor fellow tried to circumvent the law by alleging that UH "took" his photo. The court argued that copyright infringement is not "taking", as the latter entails preventing the owner from using his property. Much like if I take your tooth brush, you won't be able to brush your teeth with it. The court does not exonerate UH, it merely points out that the photographer's claim has no standing.

It's much more fun to rant against 1) capitalism, 2) communism, 3) socialism, 4) Texas, 5) America, and various assorted other favorite bogeymen (all in accordance with one's preconceived ideas), than it is to spend time learning about the facts behind a particular situation!

The result is the same no matter how you argue it: the university can steal his photo, remove his copyright mark, use the photo for publicity for years, and pay him *nothing*, and then ... finally ... get an award of attorneys' fees. It's stunning to see a photographer here defending that!

@Yake - actually, the University admitted the wrongdoing and offered him $2500 for the picture, which is in line with industry pricing. he wanted $16,000 plus $25,000 damages. He could have gotten it if he had been smart enough to make a valid claim.

Thieves don't get to pay the going rate after they get caught. The court should have awarded him the going rate plus a punitive sum to discourage theft. Here the court punished the victim, awarding nothing, and worse, ordering him to pay the thieves' legal fees. That's completely indecent. That's a court weighing mightily in favor of theft. Besides, I don't know where you found $2500 to be in line with industry pricing. As you know, photography prices vary a lot, depending on the photographer's reputation and the value of the specific image. $16K may be Jim Olive's going rate for that photo.

Easy speak , I totally disagree. I do not know anything about law in the USA but normally ANY person or institution should have a written permission to use ANY picture or what else. Putting the blame on the person is a shame. If a book publisher uses a picture or texts, it is not the person who collected the item which is charged but the editor.

But apparently, since it hasn't transpired that way, it must be the case that the "sovereign immunity" doctrine doesn't apply in that case. Otherwise, I'm pretty sure some State or other would have been sued for pirating software and would have used this as their defense.

I don't recall hearing of such a case but who knows? Maybe there was one. It's an interesting area to look into!

The first rule of power is that the powerful win. Software makers are rich and powerful.Solo photographers are not.The result is that the University can steal all it wants from a solo photographer. Stealing software from the likes of Adobe would bring a different result.

The court said the photographer was entitled to injunctive relief. In other words, he could ask the court to order the school to stop using his photograph. But he wasn't entitled to sue them for damages.

Following this argument, a software company could force the government to stop using the software, but couldn't collect damages. So the net effect is that if the gov't wants to use the s/w, it has to pay.

"So it follows that UH (and any other government entities) will never have to pay software licences by the same reasoning."

I don't know about the software you have on your computer, but all of the software on my machine popped up with a licensing agreement (EULA) to which I had to consent when I went to install it, or else the install would have failed. That licensing agreement is a valid contract and can be enforced in court. If a state entity enters into a contract voluntarily, it cannot violate the contract by invoking sovereign immunity. In other words, misappropriation of software will usually present a different case than the circumstances in this case that involve the unauthorized use of a copyrighted image.

I'm surprised the federal 11th Amendment is implicated in this case. According to its text, that amendment offers immunity of one state against lawsuits filed in federal court by citizens of ANOTHER state or by citizens or subjects of a foreign state. In this case, the photographer, Jim Olive, is a resident (and I presume a citizen) of Texas, not a resident or citizen of a different state.

From what I can gather, the court said the photographer could sue for injunctive relief (make them stop using his photo), but was not entitled to damages because this wasn't a "taking" of property under Texas law. The court's logic was that this didn't deprive the photographer of his ability to sell the photo in any way nor was the university attempting to compete with the photographer and taking away his business.

Your ability to sue the state and its agencies for damages is highly limited. For example you can't sue the highway department if a pothole causes a flat tire. Nor can you sue your building commission if they fail to issue a permit promptly and your construction costs escalate. And of course, the federal government operates under "sovereign immunity," which means it can't be sued unless it agrees to let you sue it!

But can't you sue the state if bridge that was KNOWN to be faulty by the state collapses and injures you?

What would happen if the U Houston decided to put copyrighted TV shows up on its website? The creators of those TV shows would certainly put a stop to that immediately, there's a reason you can't find episodes of Seinfeld on UTube. But by this logic the creators of those TV shows couldn't sue the University of Houston for the illegitimate use of their work.

University drama departments are very aware of making sure to purchase the rights to produce any play by contemporary playwrights before going ahead with the production. No one holds the rights to Shakespeare, but try producing a Stoppard play or even a Eugene O'Neill play without paying for it, and the university drama department will get letters demanding payment despite the fact that of course others can also produce and advertise the same plays, as long as the fees are paid and the correct permissions granted.

the hot coffee in the lawsuit you're referencing caused a very very serious injury that led to a premature death. and McDonald's had been repeatedly sued regards its hot coffee, which explicit corporate policy kept at a temperature just below the boiling point of water--in Fahrenheit terms water boils at 212 degrees and the coffee was 190.

This is normal capitalist theft. And ironically, what you'd call "freedom" is usually the freedom to cheat others.

Learnt something interesting about the Soviet Union recently, successful individual stage performers were paid largely by the ticket take--and they were well off by Soviet standards. So sell more tickets get paid more.

Then when Soviet sales reps in western Europe sold say ten million dollars in timber or aluminum (things the Soviets sold to the world with great frequency) those sales reps were paid a small, but very real, commission.

So ironically it's the socialist system which allows the parties doing the work to make a bit. Now, in the case of this photographer working in such a system, he'd probably only be paid an already set not huge fee for the use of this work.

i love this flawed logic of blaming every capitalist excess on socialism ... its the latest american brainwashing brought to you by fox news breibart prison planet and other centers of flawed thinking illogic and opposite thinking

cosinaphile and howaboutraw, I grew up in a socialist regime. When the state (state institutions) take away the private owned property (like the abuse of rights here) and the state (here, court) claims it is perfectly ok, it is not capitalist excess. It is socialism. In capitalism theft would be theft and the court would say it is bad, even if state did it. And cosinaphile, I do not know what fox news brainwashing or any other emeryca-centered BS you are talking about, I do not watch this. I live in Central Europe. Find Czechia on the map, please. ;)

"In capitalism theft would be theft and the court would say it is bad,"

Ha, ha. The point here is the court said "it's okay"--and that was in Texas.

Next time you'll need to cite some socialist country not paying artists for their work. You've confused the taking of land with intellectual property theft.

You see, I don't for a second dispute that various communist countries have taken land/castles, but so has the USA and UK. You can talk to the American "Indians" about massive land theft in the USA, and that's going on today in 2019.

Now no, the Soviet Union wasn't known for paying its artists well for their work. But that is a different point.

Regards Czechia, the Czech Republic is not a communist state.

Now, it would be kind of interesting if you could cite Czechoslovakia (which no longer exists) stealing intellectual property prior to 1990. But I know for a fact that Czechoslovakia had a patents system, which they enforced in the "west".

@HowaboutRAW Well everything was pretty much under the control and surveillance of the State. There was no such thing as private property, there was the so called state socialist property and personal property (which consisted of a very limited set of things). Also after 1953, any published photograph had to have had permission from the bureau of print and information. So the Czechoslovak state aparatus had all the rights to use any desired photograph they wished, since there was no such thing as "stealing" it back then. The patents were not private, but were granted by state organizations and up to 1990 only state firms were granted the right to use those patents. As for my sources I can cite "History of the czechoslovak law form 1945-1989" which is part of the mandatory literature at Prague's Charles University.

i maintain there is little difference between the excessess of capitalism and socialism

capitalists systems tend to allow citizen to seek exorbitant wealth, whereas socialist systems seek to have a safety net for citizens .... but theft by the state inequality , and abuses know no particular system , and are much worst as totalitarianism takes hold , which it can do in any political system

@HowaboutRAW Yes, as I have written earlier, (in a nutshell) the law theory, on which the 1950 and 1964 civil codes were founded, consisted the fact, that institutes such private property (to be understood by today's definition) as well as copyrights were nonexistent. As for patents, the State was the only one eligible to own and enforce them. So to wrap this up, if and I say if the state wanted to use a photograph, they could. I mean sure they might have been some sorts of financial settlements with the photographers, but it wasn't a necessary requirement. If you want to read up on my claims, feel free to check "History of the czechoslovak law form 1945-1989 (ISBN 978-80-87284-17-9) ", which is by the way mandatory literature for law students attending Prague's law faculty.

The point about the Czechoslovakian state paying photographers isn't about "private property"; it's about not paying for someone's labor.

You seem to be claiming that sans compensation the state could take the tea in a tea pot someone made for the family or the doll you made your grandchild at home. Unlikely.

Now, if said photo were published in a state magazine, the only kind, you may well have a point that the publication allowed the state to keep using it wherever it wanted sans any further compensation to the photographer.

@HowaboutRAW Yes, I think there was a misunderstanding along the way. When writing my comments, I had in mind a situation in which the photograph was the subject of the litigation. So if the State wanted to use a photograph taken by a professional photographer at some point in time, it could, without the need to compensate him/her anything. Now if we're talking about the remuneration of a State hired photographer for a job, that's something else. In this situation I agree, the photographer would of course get his check for the accomplished labor. As for your tea and doll example, well let me tell you that during the communist era, Czechoslovak civil law was a big absurd joke. Things such as food, clothes and other consumer goods that could be gained through "work benefiting society" were considered as "personal property", in other words today's private property. 1/2

@HowaboutRAW Then all other goods that could be considered as "means of production" could only be in the property of socialist cooperatives or the State. So if you'd go to the market and buy plums, go home and eat them, those plums would be part of your personal property and you'd be fine. But if you'd use those plums to make some plum brandy and sell it to your friends or coworkers, those plums would be considered as a mean of production and those goods wouldn't be protected by the law anymore. I think a similar analogy can be made with photographs.Hope that clears up some of my statements. Cheers. 2/2

@HowaboutRAW No personal and unpublished photographs were not subject of the State's property, if their intent was to be retained in the personal sphere. I was mainly referring to professional work. Glad we got on the same page. Cheers.

@richdm: Thank you for the link. That's a very informative article. It answers my own question regarding the 11th Amendment in the Olive case.========Specifically, the [SCOTUS] reasoned that the Eleventh Amendment was not the origin of state sovereign immunity. Rather, the States' immunity from suit [in the State's own courts and in federal courts] is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments.(25)

In this view, then, [t]he Eleventh Amendment confirmed rather than established sovereign immunity as a constitutional principle; it follows that the scope of the States' immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design.

There are loopholes. Government entities are immune from civil claims. So Olive didn’t sued for copyright infringements but compensation. However copyright is not considered in government “taking” status.... so UH actually acknowledged that it infringed the copyright but never took it from him.,,,

Strange interpretation, suggesting that the judge did something wrong. The Court of Appeal seems to have gotten this right, as they were asked to judge whether "copyright infringement is theft" under property law. I lament that neither the article, nor many comments question whether or not Mr. Olive (and his lawyers) brought this case to the right court or not. In my view, he did not.

The place where now, not only are copyright and intellectual property trolls allowed to flourish, but now also where blatant theft and copyright violations are allowed because an organization is part of the “state”.

As a photographer, this absolutely disgusts me! I hope Jim Olive has the resources to fight this all the way to the Supreme Court and get this BS overturned, before it becomes a national precedent that ruins commercial photographers, because everyone will say it’s now legal to steal our photographs and not pay us!

In fact Texas state court was at least in favor of the photographer and refused to dismiss the case in the first place. Based on current established law, state court could dismiss as UH requested in the first place.

I am simply shocked how poorly people use internet at this age of internet.

Fair play to you for still being shocked! I've become jaded and complacent at how most will not take ten minutes to get a more thorough understanding of an issue before spouting off some rubbish or other.

It's not a Texas thing. He would have been unsuccessful in any state. The court said he couldn't sue for damages; only relief. In other words, he can force them to stop using his picture, but can't collect any money because the University, as an "arm" of the state is protected under the sovereign immunity clause.

You may not like the result, but the ruling follows well-established precedents and is unlikely to be overturned.

Unfortunately, in almost every jurisdiction in the world, the owner of any intellectual property must watch out for any illegal use of their property. It is no different in the United States. How ever reprehensible the University's actions (flagrantly in contradiction of its own principles regarding copyright), Mr. Olive brought his case to the wrong court and lost on an appropriate application of 'unlawful taking' case law. There simply is no precedent for calling 'copyright infringement a theft or unlawful taking in Texas'. What did Mr. Olive and his lawyers expect a State Court to do when bringing a property law case to a State Court? They have no jurisdiction over the Copyright Act. Right reason, wrong venue.

So as long as you're a state institution such as a university you can steal other peoples work and use it to advertise to get people to pay to enrol in your establishment?

I knew the Texans were largely a bunch of beatniks, but this is some of the most absurd justification for theft I've ever heard... (right up there with "no one was watching it" and "I thought it was free".)

I guess now we can officially steal? oh, I mean use without permission, LOL, got to love the free country law. why we are accusing other country " steal", now we are teaching in college and telling our kids it's OK to it, it's legal by law. LOL.

Has nothing to do with communism or any other form of social/political cover. Rather it is pure and simple criminal behavior. That the Univ wants others to honor its own intellectual property makes this crime all the more heinous!

It’s not the judge that’s the problem. Judge is simply adjudicating based on the legal parameters the law defines. Rather, it’s the existence of such laws that give cover to this type of otherwise criminal behavior that need to be revisited.

@2stepbay: Judges exist for a reason, proper application of the law. If the law was perfect there would be not need for a Judge as human being, a computer could do the analysis and decide the outcome strictly based on input parameters and the law. Judge (human) are there to distinguish fraudulent use of the law, that's what they are paid for. Anyone can take advantage of voids in the law, but judges are there to prevent those cases.

Strange way to make the case, and that seems to be why it failed. As it went, the whole case seemed to hinge on violation of a copyright not being taking of property at least in part because the university use of the image was "nonrivalrous" (the photographer kept his right to use and/or license his photo). Thus, I'm not sure this case sets any scary new precedents. It probably should have been litigated as infringement and asked for well under the $150K statutory damages limit.

As a professor in a state university, I generally am aware of copyright issues and fair use. Personally, it sounds to me like this image was used for advertising, which would not be an instance of fair use. I would expect a university either to be willing to pay a modest licensing fee or to negotiate for credited use of the image.

This is disgusting to read. State institutions stand above normal people like a nobility. What about derivative use, like a university uses IP to derive a work and then charges patent rights for the derived work without compensating the IP holders of the fundamental work?

I believe unis in Texas do have to pay for utilities though. Why not just include textbooks on the tuition fee, copy commercial books and give for free to students?

To use a picture for commercial purposes, like advertising for publicity, should entitle the artist to compensation.

HowaboutRAW, richdm: I personally have negotiated rights to use a variety of things, ranging from a technical diagram to a "course notes" book, and I don't think for a second that in the future I can just use whatever I want in any way I want because I'm a professor in a state university. As I understand it, the 11th amendment does NOT prevent an infringement lawsuit and I don't think it applies at all to a case brought by a resident of the same state. As I read it, this ruling doesn't say an infringement case couldn't be made... however, the damages the photographer requested are $50K over the maximum limit for an infringement case, so I'm guessing that's really how this lawsuit got creative.

I don't think so. You see book publishers have a lot more wealth & power than solo photographers. Book publishers have a much better chance of defending their copyrights than solo photographers do. Same for the music industry. Photographers get shafted because they don't represent wealth or power.

Did you click the link of the judge's name? The University got the decision it sought when it's case went to a far-left Democrat judge. A university administration and another all-encompassing government Democrat are hardly representative of the state.

Hmm.... I thought the colonies had themselves a revolution to dump rule by a 'sovereign'. So, it's still the same type of rule as the UK, but without the flashy costumes and headgear.OK, I've got it now!

chriswy: Actually, no. As a Canuck I still have the British 'sovereign' as head of state. Why'd ya bother with a revolution down there if ya still have a 'sovereign'? At least we get the fancy uniforms and gowns.... Oh, and that accent that makes them all sound so smart.

It seems that in recent years the Supreme Court went against the 14th Amendment, and against precedent and against the clear will of Congress. So the author of your link concludes: "infringements by States are likely to increase".

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